8 18 
SUPPLEMENT TO FOREST AND STREAM. 
[Nov. 24, 1906. 
and plants which experience has shown to be 
injurious to our agricultural and other interests. 
This is purely a police regulation and of the 
kind that can be exercised by the States as be¬ 
tween themselves. Similar Federal statutes pro¬ 
hibit the importation of obscene literature, 
opium, lottery tickets, women of bad character, 
etc., and being regulatory of public morals, they 
are police laws, pure and simple. 
INTERNATIONAL QUARANTINE. 
Quarantine regulations, either State or Na¬ 
tional are not mentioned in our Federal Con¬ 
stitution. Under the old idea the States were 
regarded as the sole guardians of public health 
Soon, however, it was seen that the National 
government alone could effectively prevent the 
entry of contagious and other harmful diseases 
into our midst and Congress acted accordingly, 
under its sovereign power to preserve public 
health. These are police regulations of the first 
order and are exercised by all nations, m pre¬ 
venting the entry of persons or live stock in¬ 
fected with communicable diseases, dangerous 
to the health of the country. While at one time 
the coast States attempted to regulate, at their 
ports of entry, such admission, they have now 
yielded the supervisory right to the Federal 
government. 
IMPURE FOOD AND DRUG IMPORTATION ACT. 
Although the present Congress has given 
much time to the consideration and perfection 
of the Hepburn bill, for the regulation of the 
sale and manufacture of impure foods and drugs, 
in the United States, it is doubtful if one person 
in a thousand knows that last year Congress, 
in the form of a rider to the general Agricultural 
Appropriation bill, enacted a law giving the 
Secretary of Agriculture power to investigate 
adulterations, false labeling, or false branding 
of foods, drugs, beverages, condiments and in¬ 
gredients of such articles * * * where he 
has reason to believe that such articles are 
being imported from foreign countries which 
are dangerous to the health of the people of the 
United States.” 
But this measure, unlike the Hepburn Bure 
Food bill, does not seek to make its legality 
wholly depend upon the commerce clause, but 
stands out clearly as a police measure intent 
upon the preservation of public health and the 
guarding of domestic consumers against fraudu¬ 
lent foreign productions. Any one who can 
read this act and appreciate all the powers given 
the government authorities for the inspection, 
control or exclusion of such adulterated or mis¬ 
branded goods and not say it is a police legula- 
tion of the most drastic source, is beyond the 
reach of any argument I can offer in,support of 
such a proposition. 
The Present Extent and Limitations of 
National Police Power. 
We now come to those numerous and impor¬ 
tant instances where the Federal government in 
the guardianship of our general internal welfare 
has found it necessary, from time to time, to put 
in statutory form police regulations for the bet¬ 
terment of our social and economic conditions. 
These acts of Congress include practically every 
form in which the State also seeks to preserve 
the internal peace, individual comfort, and the 
moral and physical safety of one and all within 
the scope of its legislative action. 
In order to have some semblance of a classi¬ 
fication of the various elements entering into 
the exercise of such Federal powers, I shall take 
up, in the order of their general importance, the 
different instances of police regulations, under 
those appellations which usually serve as an alias 
for police power. 
REGULATIONS OF INTERSTATE COMMERCE. 
The authority given Congress “to regulate 
commerce with foreign nations and among the 
several States and with the Indian tribes,” is the 
most familiar screen for covering up interstate 
or National police power. 
In the early days the regulation of commerce, in 
the sense used in the Constitution, was regarded 
by the courts and Congress as a mere withdrawal 
from the States of any power to tax or harass 
by petty and inharmonious local regulations the 
free passage of commerce from port to port, either 
foreign or domestic; for the framers of the Con¬ 
stitution, according to the record of debates, were 
then only providing for the perpetual establish¬ 
ment of free, unhampered commerce between the 
States. 
The manner in which the commerce clause is 
now used, to restrain, restrict and prohibit com¬ 
merce and regulate business ethics and what not, 
is wholly due to the now admitted necessity of 
preserving public welfare by numerous regulatory 
provisions of a police nature. The various re¬ 
straints, necessary now to be placed upon the 
cupidity, recklessness and general depravity of 
mankind in the wider sphere of business and 
social relations, have, in the absence of a better 
term, been labeled “regulations of interstate com¬ 
merce.” Sometimes it is, and sometimes it is 
not a regulation of commerce, but in either case 
it is a police regulation whenever affecting the 
health, morals and unfair business methods in 
National trade and commerce. 
THE LOTTERY AND INSURANCE CASES. 
In volume 188, U. S. Rep., p. 321, is reported 
a case which not only fairly represents the pres¬ 
ent legal status of Federal police power, but is 
a perfect picture of the hopeless efforts of our 
highest court to avoid a practical admission that 
Congress possesses the right to legislate upon 
those subjects of general welfare which, in the 
States’ sphere of action, are always within the 
purview of its police power. Yet that the delicate 
situation was fairly realized by the Supreme 
Court in deciding the lottery cases, is shown from 
the fact that they were argued fully, and then 
twice reargued thereafter, with a resulting de¬ 
cision that the lottery act of Congress was held 
to be constitutional, by a vote of five to four. 
To any one who wishes to get a clear idea of 
the great struggle now gradually culminating in 
favor of recognizing police power as a necessary 
attribute of Federal sovereignty, I would recom¬ 
mend a careful reading of this case. 
In the condensed form in which this brief now 
appears, I have necessarily omitted a comprehen¬ 
sive comparison of the lottery cases with the de¬ 
cision of the same court in the insurance cases. 
It is proper, however, to say that in the former 
the Supreme Court decided that this pernicious 
form of gambling could be suppressed by Con¬ 
gress under the commerce clause; while, on the 
other hand, a legitimate business, involving 
hundreds of millions of dollars in interstate 
transactions, could not be reached under the 
same clause, however harmful certain abuses of 
insurance corporations carrying on a business 
beyond the effective control of the separate States. 
Neither in the extension of the commerce clause 
to wipe out a “moral pestilence,” as the court 
defined lotteries, nor in its refusal to curb the 
power of the great insurance companies under 
the same clause—do I desire to make the slightest 
criticism of inconsistency—but on the contrary, 
believing firmly, as 1 do, that our highest court 
is composed of the best legal minds of the coun¬ 
try—that these two interpretations of the com¬ 
merce clause only serve to point out. in the most 
striking manner, the impossibility of asserting a 
National police power as a—distinctly enumerated 
—instead of a—naturally inherent—power of a 
sovereign government. Since the right of a State 
to supervise lotteries or insurance companies is 
based upon its police power (quite irrespective of 
their commercial character) the solution becomes 
easy when a similar power is recognized in the 
Federal government. 
CONSTITUTIONAL AMENDMENT UNNECESSARY. 
Numberless writers have suggested a constitu¬ 
tional amendment which would vest in the central 
government the right to exercise certain sov¬ 
ereign powers which, in their judgment, could 
not be fully asserted under the present Constitu¬ 
tion. Leaving aside the almost insurmountable 
difficulties lying in the way of amending the Con¬ 
stitution, it must be plain that any purely sov¬ 
ereign power cannot be brought into life by the 
formal assent of a lesser sovereignty, or with¬ 
held by such a lesser political entity, admittedly 
incapable of exercising the power thus denied to 
the general government. National police power 
is that attribute of sovereignty which only comes 
into use (1) where the jurisdiction of the State 
police power definitely ends, or (2) where the 
well established failure of any State to properly 
exercise its police power necessarily and inevit¬ 
ably injures the substantial welfare of the citizens 
of other States—in which latter case a corrective 
power must be in the central government, or 
otherwise the autonomous relations of the States 
to each other would be impaired or destroyed. 
Since the States are not asked to part with a 
single police power actually or theoretically cap¬ 
able of exercise, how can these States vest in the 
central government that which they, either singly 
or collectively, do not possess or, if possessing, 
are not required to part with? Police power as 
a basic legislative function, is an inherent and 
not an express power, or one impliedly reserved 
exclusively to the States, and hence its dual exist¬ 
ence in separate sovereignties is not a matter at 
all of reserved or enumerated powers in State or 
Federal legislation. 
The extent to which the general government 
employs this essential power and the makeshifts 
under which it frequently must be asserted, will 
appear more fully in what immediately follows. 
Instances of Federal Internal Police Power. 
THE SHERMAN ANTI-TRUST ACT. 
The most far-reaching and drastic act, for the 
regulation or destruction of trade monopolies 
ever enacted under the police power of any state 
or nation. 
By this act every person, firm, association or 
corporation doing an interstate business is sub¬ 
jected to Federal supervision—from the inspection 
of the private books up to the dissolution of the 
business or corporate enterprises violative of its 
provisions, including personal penalties of the 
most severe character. It would take a volume 
to depict the important litigation, past, present 
and in future contemplation, involving the police 
regulations restrictive of those illegal combina¬ 
tions and trade conspiracies harmful to the gen¬ 
eral welfare of the Nation. Many of the sepa¬ 
rate States have police statutes directed against 
local restraints of trade, but none surpass this 
act in severity or give such absolute authority 
for the detection and punishment of the wrong 
doer. Under this law the beef trust, the oil trust, 
the drug trust, tobacco trust, the railroad merger 
monopolies, etc., have all been prosecuted by the 
Federal authorities; the courts in several cases 
going so far as to hold that combinations and 
consolidations, which may prove destructive to 
competition, are, per sc, violations of the act, 
without proof that they have, in fact, restrained 
trade or increased prices. A good illustration of 
what Congress can do when it can once get in 
its work, under the commerce clause, enacted in 
the year 1787! 
ELKINS ANTI-REBATE ACT. 
Just a shade under the former measure in its 
vigorous application of police power. 
A -shipper, consignee and carrier may, in a 
given case, be charged with conspiracy, extortion 
and various misdemeanors provided in its sweep¬ 
ing regulations, also to be categoried under the 
commerce clause. 
OLEOMARGARINE ACTS. 
One act requires specified marking and wrap¬ 
ping indicative of the contents, alleged to be for 
the prevention of fraudulent sales, which, if true, 
makes it a police regulation. The other act im¬ 
poses a tax of ten cents a pound upon the sub¬ 
stance when colored; its supposed purpose, to 
prevent its competition with butter; alleged pur¬ 
pose, to be a safeguarding of the public against 
deception; hence a police regulation. 
FEDERAL SAFETY-APPLIANCE LAWS. 
Similar in most respects to the police statutes 
of the States reauiring the best adapted and most 
efficient devices for the protection of life and 
limb of employes and passengers on railways. 
